Archive for August, 2016

Do You Need a Warrant to Use a Cellphone Tracking Device?

posted by Judge_Burke @ 14:30 PM
August 12, 2016

A federal judge in Manhattan suppressed narcotics evidence because the U.S. Drug Enforcement Administration didn’t get a warrant to use a cellphone tracking device that led them to the suspect’s apartment.

The decision by U.S. District Judge William Pauley appears to be the first time a federal judge has required a warrant for use of a cell-site simulator, which mimics cellphone towers to track suspects’ cellphones, reported the New York Law Journal (sub. req.) and the New York Times. The devices go by the names StingRay, Hailstorm and TriggerFish.


Does the Second Amendment Protect the Right to Bear a Knife?

posted by Judge_Burke @ 14:30 PM
August 11, 2016

Until the United States Supreme Court ruled there was an individual right to bear arms, the prevailing wisdom was that there was not constitutional right to have a gun. Gun rights are now part of the political lexicon, so what next?

Bringing the Second Amendment to a knife fight. You have the right to bear arms, and by arms the Constitution also means knives:

While congressional Democrats and Republicans go head-to-head over gun control, proponents of a smaller, often overlooked facet of the Second Amendment’s right to keep and bear arms pursue a battle of their own—the right to carry a knife.

Knife Rights, an Arizona-based advocacy group aimed at ridding states of existing bans on specific types of knives, is leading the fight against restrictive knife laws across the U.S.

“Protecting knife rights is the second front in the defense of the Second Amendment,” Todd Rathner, director of legislative affairs at Knife Rights, told The Daily Signal.

The group also seeks passage of “knife law preemption,” which essentially removes local and county restrictions that conflict with state laws on using and carrying knives. 


Read more here.



The Professor v. The Appellate Judge

posted by Judge_Burke @ 14:40 PM
August 10, 2016

The National Law Journal recently reported that:

“When a judge harshly critiques a lawyer in a written opinion, it’s sometimes called a “bench slap.”

There is no term devoted to counsel rebuking judges. Perhaps it can be called an “Alschuler slap.”

Albert Alschuler, a well-known and now retired University of Chicago Law School professor, accused a federal appeals court judge in a law review article published last week of eight “falsehoods” in two opinions that kept Alschuler’s client, former Illinois Gov. George Ryan, in prison.

Alschuler called U.S. Court of Appeals for the Seventh Circuit Judge Frank Easterbrook, a University of Chicago colleague widely hailed as one of the nation’s leading jurists, a “bully” with a “paradox” of a reputation. While intellectuals and academics have praised Easterbrook, Alschuler writes that he has also earned the scorn of practitioners who have appeared in front of him.

The article represents a battle between lawyers at the top of the federal judiciary and legal institutions of higher learning.

In an interview, Alschuler said the article was written partly out of anger, but it is also intended to prod Easterbrook’s federal appellate colleagues to “rein him in.”

“Judge Easterbrook’s colleagues should view everything he says with skepticism and should recognize the serious problem his conduct poses for their court,” Alschuler writes in the article, titled “How Frank Easterbrook Kept George Ryan in Prison,” published in the Valparaiso Law Review and downloaded more than 1,400 times by the time of this story.


A previous post dealt with the Supreme Court of Canada’s decision on the right to a speedy trial. But, for those who are interested in this decision and its implication, this summary was prepared by Judge Wayne Gorman. 

R. v. JORDAN, 2016 SCC 27, JULY 8, 2016.

FACTS: The accused was charged in December 2008 with an offence contrary to the Controlled Drugs and Substances Act.  His trial ended in February 2013. At the commencement of the trial, the accused brought an application under section 11(b) of the Canadian Charter of Rights and Freedoms seeking a stay of proceedings due to the delay. The trial judge, applying the test set out by the Supreme Court of Canada in R. v. Morin, dismissed the application and the accused was convicted. An appeal to the British Columbia Court of Appeal was dismissed.  The accused appealed to the Supreme Court of Canada.

HELD: The appeal was allowed, the convictions set aside and a stay of proceedings entered.

The Supreme Court decided to reject the framework for section 11(b) that it had set out in R. v. Morin (a balancing of factors).  In its place, the Supreme Court has created a new framework which involves “a presumptive ceiling” beyond which delay from date of the laying of the charge to the actual or anticipated end of trial will be “presumed to be unreasonable”, unless “exceptional circumstances” justify the time period involved.

The Court held that the presumptive ceiling is eighteen months for cases tried in the provincial court, and thirty months for cases tried in the superior court (or cases tried in the provincial court after a preliminary inquiry). Delay attributable to or waived by the accused will not count towards the presumptive ceiling.

The Supreme Court held that once the presumptive ceiling is exceeded, “the burden is on the Crown to rebut the presumption of unreasonableness” on the basis of “exceptional circumstances.” If the Crown cannot do so, a stay will follow. The Supreme Court indicated that exceptional circumstances are circumstances which lie outside the Crown’s control in that “(1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied.”  Though the list of exceptional circumstances is not closed, the Supreme Court indicated that “in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.”  If “the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable to exceptional circumstances) falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. We expect stays beneath the ceiling to be rare, and limited to clear cases” (at paragraphs 46 to 48).

The Supreme Court held that an exceptional circumstance is the only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling. The Court stated that the seriousness or gravity of the offence can no longer be relied upon, nor can chronic institutional delay, to justify delay beyond the presumptive ceiling. In addition, the Supreme Court held that “the absence of prejudice” to the accused can also no longer be used to justify delays after the presumptive ceiling is breached. The Court held only circumstances that are genuinely outside of the Crown’s control and ability to remedy may furnish a sufficient excuse for the prolonged delay.

Defence Delay:

The Supreme Court held that “as a first step, total delay must be calculated, and defence delay must be deducted. Defence delay comprises delays waived by the defence, and delays caused solely or directly by the defence’s conduct. Defence actions legitimately taken to respond to the charges do not constitute defence delay” (at paragraph 66).  The Court described the manner in which defence delay is to be considered pursuant to section 11(b) of the Charter in the following manner (at paragraphs 63 to 65):

The second component of defence delay is delay caused solely by the conduct of the defence. This kind of defence delay comprises “those situations where the accused’s acts either directly caused the delay . . . or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial” (Askov, at pp. 1227-28). Deliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests, are the most straightforward examples of defence delay. Trial judges should generally dismiss such applications and requests the moment it becomes apparent they are frivolous.

As another example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence. However, periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable. This should discourage unnecessary inquiries into defence counsel availability at each appearance. Beyond defence unavailability, it will of course be open to trial judges to find that other defence actions or conduct have caused delay (see, e.g., R. v. Elliott (2003), 114 C.R.R. (2d) 1 (Ont. C.A.), at paras. 175-82).

To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally not count against the defence. We have already accounted for procedural requirements in setting the ceiling. And such a deduction would run contrary to the accused’s right to make full answer and defence. While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions.

Cases Currently in the System:

The Supreme Court indicated that “there are a variety of reasons to apply the framework contextually and flexibly for cases currently in the system” (at paragraph 94). However, the Court held that the “new framework, including the presumptive ceiling, applies to cases currently in the system, subject to two qualifications” (at paragraphs 96 and 99):

First, for cases in which the delay exceeds the ceiling, a transitional exceptional circumstance may arise where the charges were brought prior to the release of this decision. This transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed. This requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and the fact that the parties’ behaviour cannot be judged strictly, against a standard of which they had no notice. For example, prejudice and the seriousness of the offence often played a decisive role in whether delay was unreasonable under the previous framework. For cases currently in the system, these considerations can therefore inform whether the parties’ reliance on the previous state of the law was reasonable. Of course, if the parties have had time following the release of this decision to correct their behaviour, and the system has had some time to adapt, the trial judge should take this into account.

The second qualification applies to cases currently in the system in which the total delay (minus defence delay) falls below the ceiling. For these cases, the two criteria — defence initiative and whether the time the case has taken markedly exceeds what was reasonably required — must also be applied contextually, sensitive to the parties’ reliance on the previous state of the law. Specifically, the defence need not demonstrate having taken initiative to expedite matters for the period of delay preceding this decision. Since defence initiative was not expressly required by the Morin framework, it would be unfair to require it for the period of time before the release of this decision. However, in close cases, any defence initiative during that time would assist the defence in showing that the delay markedly exceeds what was reasonably required. The trial judge must also still consider action or inaction by the accused that may be inconsistent with a desire for a timely trial (Morin, at p. 802).

A Summary:

The Court summarized the new framework for section 11(b) of the Charter in the following fashion (at paragraph 105):

There is a ceiling beyond which delay becomes presumptively unreasonable. The presumptive ceiling is 18 months for cases tried in the provincial court, and 30 months for cases in the superior court (or cases tried in the provincial court after a preliminary inquiry). Defence delay does not count towards the presumptive ceiling.

Once the presumptive ceiling is exceeded, the burden shifts to the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. Exceptional circumstances lie outside the Crown’s control in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied. If the exceptional circumstance relates to a discrete event, the delay reasonably attributable to that event is subtracted. If the exceptional circumstance arises from the case’s complexity, the delay is reasonable.

Below the presumptive ceiling, in clear cases, the defence may show that the delay is unreasonable. To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have.

For cases currently in the system, the framework must be applied flexibly and contextually, with due sensitivity to the parties’ reliance on the previous state of the law.

          [The Court’s Emphasis]


The Supreme Court concluded that in this case the Crown had failed to discharge its burden of demonstrating that the delay was reasonable. Though the case was described by the Supreme Court to be “moderately complex”, the Court concluded that it was not so “exceptionally complex” that it would justify such a delay.


R. v. WILLIAMSON, 2016 SCC 28, JULY 8, 2016.

FACTS: The accused was charged with a sexual offence in January 2009. His trial ended in December 2011. At the commencement of the trial the accused applied for a stay of proceedings pursuant to section 11(b) of the Charter due to the delay. The trial judge dismissed the application and the accused was convicted. The Ontario Court of Appeal allowed the appeal and entered a stay. The Crown appealed to the Supreme Court of Canada.

HELD: The appeal was dismissed. Applying the new framework it set out in Jordan, the Supreme Court held that “although this is a close case, the transitional exceptional circumstance does not apply and, therefore, the delay is unreasonable. A variety of factors support this conclusion” (at paragraphs 26 to 30):

First, the case against Mr. Williamson was straightforward. It involved the evidence of one complainant, one police officer, a videotaped police interview of Mr. Williamson, and the testimony of Mr. Williamson himself. His trial ultimately took 13 days — six days for pre-trial applications (two of which were devoted to the s. 11(b) application), and seven days for the trial proper. This was by no means a complex case. Indeed, the trial judge estimated the total inherent time requirements of the case as being approximately eight months.

Second, the 25-month institutional delay found by the Court of Appeal exceeded the upper end of the Morin guidelines by roughly seven months. Specifically, in the Provincial Court, Mr. Williamson twice attended preliminary hearing dates, only to be turned away because of scheduling issues — even though the Crown appears to have been aware of some of them in advance. The trial judge was rightly concerned about the loss of the two preliminary inquiry dates, about which he wrote: “The accused and his lawyer travelled from Ottawa on both of these dates without prior notice that the proceedings would be adjourned. This is most unfortunate and of concern to this court and relevant to the 11(b) application” (para. 14 (CanLII)). All told, it took approximately a year to complete the preliminary inquiry.

In the Superior Court, while it was reasonable to expect some additional delay in scheduling the trial due to the shortage of jury trial courtroom time in Kingston, the Crown appears to have been content to accept the resulting institutional delay, demonstrating no effort to mitigate it. This is particularly troubling because significant delay had already elapsed in bringing this matter to trial: the problems in the Superior Court transpired directly following the considerable difficulties experienced in the Provincial Court. In this regard, we note that for pre-trial applications — which consumed about half of the total trial time — a jury courtroom was not required. The record does not disclose whether the Crown could have been successful if it had attempted to expedite the trial. However, the point is simply that the Crown made no effort. As the Court of Appeal wrote, “the Crown … [did not take] seriously the obligation to bring this relatively straightforward case to trial in a reasonable time” (para. 67).

Third, the Crown’s lack of initiative is in contrast to Mr. Williamson’s repeated efforts to expedite the proceedings. As mentioned, defence counsel wrote to Crown counsel after the preliminary inquiry was first adjourned in November 2009, stating that the defence was anxious to move forward with the matter. Defence counsel raised the delay issue again when the preliminary inquiry was adjourned a second time in February 2010. Further, the defence sought earlier dates for the preliminary inquiry, indicating its desire to move forward expeditiously. The defence also cooperated with the Crown to streamline the evidence and to use court time efficiently during the preliminary inquiry. All of these facts demonstrate that, as the Court of Appeal observed, “the defence was diligent in attempting to move the matter along” (para. 67).

Ultimately, we agree with the Court of Appeal that, while the s. 11(b) question in this case is “very difficult” (para. 64), looking at the big picture, the previous state of the law cannot justify the nearly three years it took to bring Mr. Williamson to trial on relatively straightforward charges. As the Court of Appeal observed, while the crimes committed by Mr. Williamson are very serious, “the balance weighs in favour of [his] interests in a trial within a reasonable time, over the societal interest in a trial on the merits” (para. 68). Although Mr. Williamson did not suffer significant prejudice, the case was simple, the Crown did little to combat the substantial institutional delay that plagued the prosecution, and Mr. Williamson was reasonably proactive in attempting to move the matter along. Not even the absence of significant prejudice to Mr. Williamson’s Charter-protected interests can stretch the bounds of reasonableness this far.


How Do Judges Think About Racial Disparity

posted by Judge_Burke @ 14:30 PM
August 4, 2016

If you read a lot of academic literature about courts and the criminal justice system, you painfully learn that brevity and quickly getting to the point are not a staple of most of that literature…and so we either don’t read it or we quickly stop reading it. Racial disparity is an issue this Court and our nation needs to deal with.

So, an article entitled, “How Judges Think About Racial Disparity,” is something all of us should be interested in reading. It draws upon 59 interviews with judges in a Northeastern state. The first  ten pages are a challenge…but, if you read them, you read it all. For those of you who took the Evelyn Wood speed reading courses, these initial pages will be a breeze.

The authors consider how judges understand and deal with four specific situations:  arraignment, plea hearings, jury selection, and sentencing. The article discusses noninterventionist and interventionist strategies for dealing with racial disparity.

This is my personal take on the article:  It made me think in a structured way about how I approach this issue and how I should approach this issue. 

The article may be found here.  This is an issue and an article that hopefully will generate some comment.



How Pre-trial Detention Affects Outcomes

posted by Judge_Burke @ 15:47 PM
August 3, 2016

Megan Stevenson has posted Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes on SSRN.

Here is the abstract:

Instrumenting for detention status with the bail-setting propensities of rotating magistrates I find that pretrial detention leads to a 13% increase in the likelihood of being convicted, an effect explained by an increase in guilty pleas among defendants who otherwise would have been acquitted or had their charges dropped. On average, those detained will be liable for $128 more in court fees and will receive incarceration sentences that are almost five months longer. Effects can be seen in both misdemeanor and felony cases, across age and race, and appear particularly large for first or second time arrestees. Case types where evidence tends to be weaker also show pronounced effects: a 30% increase in pleading guilty and an additional 18 months in the incarceration sentence. While previous research has shown correlations between pretrial detention and unfavorable case outcomes, this paper is the first to use a quasi-experimental research design to show that the relationship is causal.


Racial Discrimination and Jury Selection

posted by Judge_Burke @ 16:00 PM
August 2, 2016

Peter A. Joy and Kevin C. McMunigal (Washington University in Saint Louis – School of Law and Case Western Reserve University School of Law) have posted Racial Discrimination and Jury Selection on SSRN.

Here is the abstract:

In an effort to eliminate a long history of racial discrimination in jury selection, the U.S. Supreme Court held in Batson v. Kentucky, 476 U.S. 79 (1986), that jurors cannot be excluded on the basis of race through a prosecutor’s use of peremptory challenges. Despite that ruling, racial discrimination in jury selection has remained a persistent problem. In May 2016, the U.S. Supreme Court decided yet another case, Foster v. Chatman, finding that prosecutors’ use of peremptory challenges to exclude all eligible potential African American jurors to achieve an all-white jury in Georgia violated Batson. That jury sentenced 18-year-old Timothy Foster, an African American man, to death for the murder of an elderly white woman. Nearly 30 years later, the Court concluded that the prosecutors were motivated in substantial part by race when they struck two potential jurors from the jury. Emphasizing the seriousness of racial discrimination in jury selection, the Court admonished: “Two peremptory strikes on the basis of race are two more than the Constitution allows.” The Supreme Court may have granted Foster a new trial based on Batson, but that is unlikely to stop racial discrimination in jury selection. Since the Court decided Batson 40 years ago, issues of racially motivated use of peremptory challenges frequently arise. In that time, several cases have reached the Court, and countless more have gone to state and federal courts of appeals. In view of the intractable problem presented by the use of peremptory challenges, commentators have recommended a variety of solutions to eliminate racial discrimination in jury selection and achieve more inclusive and representative juries. In this ethics column, we explore the problems with Batson as a constitutional rule as well as the legal ethics of racial discrimination in jury selection. We also consider alternatives to peremptory challenges, and conclude by endorsing alternatives to the current system of peremptory challenges as the best alternatives to curb racial discrimination in jury selection.


A Brady Issue Judges Will Have to Confront

posted by Judge_Burke @ 14:30 PM
August 1, 2016

Brady’s Blind Spot: Impeachment Evidence in Police Personnel Files and the Battle Splitting the Prosecution Team

Jonathan Abel 

Stanford Law School – Constitutional Law Center

April 1, 2015

67 Stan. L. Rev. 743 (2015) 


The Supreme Court’s Brady doctrine requires prosecutors to disclose favorable, material evidence to the defense, but in some jurisdictions, even well-meaning prosecutors cannot carry out this obligation when it comes to one critical area of evidence: police personnel files. These files contain valuable evidence of police misconduct that can be used to attack an officer’s credibility on the witness stand and can make the difference between acquittal and conviction. But around the country, state statutes and local policies prevent prosecutors from accessing these files, much less disclosing the material they contain. And even where prosecutors can access the misconduct in these files, their ability to disclose this information, as required by the Constitution, is constrained by the efforts of police officers and unions who have used litigation, legislation, and in-formal political pressure to prevent Brady’s application to these files. Suppression of this misconduct evidence can cost defendants their lives, but disclosure can also be costly. It can cost officers their livelihoods.

Using interviews with prosecutors, police officials, and defense attorneys around the country, as well as unpublished and published sources, this Article provides the first account of the wide disparities in Brady’s application to police personnel files. It argues that critical impeachment evidence is routinely and systematically suppressed as a result of state laws and local policies that limit access to the personnel files and as a result of the conflict within the prosecution team over Brady’s application to these files. Further, the Article challenges Brady’s assumption that prosecutors and police officers form a cohesive “prosecution team,” and that, in the words of the Supreme Court, “the prosecutor has the means to discharge the government’s Brady responsibility if he will” by putting in place “procedures and regulations” to bring forth information known only to the police. Finally, the Article contends that privacy protections for police misconduct are incompatible with core aspects of the Brady doctrine and that systems that attempt to balance Brady against police privacy wind up sacrificing the former to the latter. As both a doctrinal and a normative matter, police misconduct should receive no protections from Brady’s search and disclosure obligation.